Endangered Species Act Final Regulatory Revisions Released

The National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (“USFWS”) (together, the “Services”) have released three final rules related to implementation of the Endangered Species Act (ESA). The rules are available on USFWS’s website and are expected to be published in the Federal Register in the coming days.

The Services have revised their joint regulations on interagency consultations (also known as ESA Section 7 consultations) and regulations related to listing and delisting species and designating critical habitat. In addition, USFWS has again revised how it extends “take” prohibitions to threatened species under ESA Section 4(d). These revisions were made pursuant to the Biden Administration’s direction to review recent agency actions (including the 2019 ESA regulatory revisions) and in response to litigation over ESA regulations issued in 2019.

With the finalization of these rules, the Services significantly broaden their authority to condition federally permitted projects by imposing mitigation – including conservation bank contributions, in-lieu fee programs, offsite restoration, and other “offsets” – to compensate for unavoidable impacts to listed species. In addition, the rules make it easier for the Services to designate unoccupied areas as “critical habitat” by eliminating requirements to find that the habitat contains features essential to the species and that it is reasonably certain to contribute to the species’ conservation. This gives the Services sweeping authority to designate areas that currently are not within the species’ range, presumably in anticipation of changing landscapes caused by climate change.

All changes are prospective, meaning that they do not require changes to Section 7 consultation documents or to listing, delisting or critical habitat designation decisions issued before the rules’ effective date, which will be 30 days after publication in the Federal Register.

Read a full breakdown of the key provisions in the final regulations on the Stoel Rives Environmental Law blog.